Wednesday, May 15, 2013

and the Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP)

High Court Hearing on Guyana’s Cross-dressing Law Adjourned to June 4

GEORGETOWN, GUYANA

On Friday 10th May, 2013, Guyana’s Chief Justice Ian Chang heard arguments in a constitutional challenge to Guyana’s nineteenth century cross-dressing law. The applicants are Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD). The Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP) is coordinating litigation in this case. The matter raises key questions about how the random application of outdated laws can increase the vulnerability of poor and powerless people to others’ prejudices. U-RAP argued that the law is unconstitutional because it violates fundamental rights to equality and non-discrimination.

The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act. The 1893 law makes it a criminal offence for men to wear female attire and for women to wear male attire “in any public way or public place, for any improper purpose.” Other activities criminalised in section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop and hauling timber in a public way.

U-RAP co-founder, and public law lecturer at the University of the West Indies, St. Augustine, Dr. Arif Bulkan explained that this colonial law was part of repressive penal regimes instituted in the second half of the nineteenth century throughout the Caribbean to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants. Bulkan notes that “despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like section 153(1) have been kept in effect long after independence.” He adds that “the law is plainly at odds with the ethos and provisions of the Guyana Constitution which states that it is committed to 'eliminating every form of discrimination.'”

Seon Clarke, litigant in the case questioned on Friday, “How can we still have these laws today? They are used to harass a particular set of Guyanese and it is not right. All the lawyers in court today, were in gowns that looked very much like dresses, shouldn’t they be charged too?”

Seyon Persaud, litigant in the case, added that the general attitude of the community is still very discriminatory and violent. This makes it extremely difficult to access employment, health care and to simply live. “I am Guyanese too and deserve to do all these rights like everybody else,” said Persaud.

The applicants argued that the law violates many provisions of the amended Guyana Constitution, particularly the rights to equality and non-discrimination in Articles 149 and 149D. As a general rule, any aspect of a law that is at odds with the Constitution is invalid.

Dr. Alissa Trotz, Associate Professor, Women and Gender Studies, and Caribbean Studies, at theUniversity of Toronto, and of Guyana’s Red Thread, pointed out that it was especially important to recognize and applaud the conviction of the four applicants as well as SASOD, for keeping a necessary spotlight on discrimination on the basis of sexual orientation and gender identity. “They make me so proud to be Caribbean,” she said. Further, it highlights how laws can be selectively applied to uphold not justice but a status quo that protects and works for the few, and where those without the so-called respectability of money and power can be regularly and readily targeted for persecution, Dr. Trotz contended.

The hearing comes at an opportune time for Guyana. This year the nation has several chances to engage in a rational discourse surrounding key human rights issues. As part of the Human Rights Council’s Universal Periodic Review process, a Special Select Committee of Parliament is considering arguments from a spectrum of stakeholders on law reform related to three issues - corporal punishment in schools, the death penalty and discrimination against lesbians, gays, bisexuals and transgender persons. Additionally, on-going nationwide community consultations will increase public engagement and education which are critical to changing perceptions.

SASOD’s Secretary of the Board of Trustees, Zenita Nicholson, explained that the constitutional challenge is part of this wider network of opportunities to examine the way people interact with one another, whether state agencies uphold the rights and dignity of all citizens, and the extent to which laws undermine equality.

Another hearing is scheduled for June 4th 2013 in the High Court, Chief Justice’s chambers.

SASOD is a Guyana-based human rights advocacy organisation which is committed to promoting equal rights for all people, with a focus on eliminating discrimination on the grounds of sexual orientation, gender identity and gender expression.

U-RAP’s objective it is to promote human rights and social justice in the Caribbean by undertaking and participating in human rights litigation in collaboration with human rights lawyers and organisations. The team of lawyers involved in the current case includes Gino Persaud and Nigel Hughes. Attorney-at-law and U-RAP co-founder, Dr. Arif Bulkan, presented arguments on behalf of the applicants on Friday.

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About SASOD

The Society Against Sexual Orientation Discrimination (SASOD) is a human rights organisation and movement dedicated to achieving equality and justice for all Guyanese, especially those suffering discrimination based on their sexuality, gender, sexual orientation, gender identity and gender expression. We support similar work in Latin America and the Caribbean, Americas, Commonwealth, Global South and worldwide.